Public Whip Count

November 18, 2008

A modest marriage proposal

Posted by: Chris

With the click of a mouse and boots on the street, hundreds of thousands of newly minted activists across the country last weekend declared independence from the top-down, black-tie, this-cutesy-logo-brought-to-you-by movement for gay civil rights.

It took the political perfect storm: the “Yes We Can” spirit behind Barack Obama’s election, running smack up against the “Oh No You Don’t” passage of Proposition 8 banning gay marriage in California.

The result was Stonewall 2.0. No corporate sponsors, no tony Washington, D.C., offices, and not a single poll or focus group. Just tech-savvy young activists pulling off day after day of street protests in California, followed by a massive mobilization on Nov. 15, a National Day of Protest in big cities and small towns across these United States.

In handmade signs signed off on by no one, gay and straight alike made their case for equality, and rejected en-masse the inane “strategery” of avoiding words like “marriage,” “discrimination” and “gay” because they didn’t poll well.

“No More Mrs. Nice Gay”“OMG CA, WTF?”“Keep your church out of our state”“Would you rather I married your daughter?”“You get married in your church, I’ll get married in mine.”“Hey California, Jim Crow called. He wants his Proposition 8 back.”

These protesters weren’t buying the namby-pamby “gay agenda” our so-called leaders have already agreed to behind closed doors in Washington. Those Beltway-based Democrats have collected our checks and counted our votes for a decade with promises to pass hate crime and employment non-discrimination laws. Belatedly keeping their word is a beginning, not the end.

What do we want, then? Repealing Proposition 8, of course, but that’s not even an option until 2010, at the earliest, and may well be taken care of by the legal eagles already challenging the ballot measure in the courts. Even if Prop 8 is reversed, we are only back to where we were on Nov. 3, leaving the vast majority of same-sex couples across America with little or no recognition for their relationships or prospects for same.

That’s why a growing number of us have our own modest marriage proposal. Call it Proposition 9, or Prop -8, if you’d like. It would instantly confer more than 1,200 rights and benefits to same-sex couples in every single city, state and small town in the U.S., and it’s already supported by two-thirds of Americans.

What is it? A federal civil unions law.

What would it do? A federal civil unions law would say that all the rights and benefits enjoyed by heterosexual married couples under federal law would be extended to same-sex couples whose relationships are recognized under state law.

What kind of rights are we talking about? Hundreds and hundreds -- 1,269 to be exact, according to the G.A.O. -- including “real life” benefits like equal access to Social Security, Medicare and Medicaid, food stamps, welfare, veterans and disability survivor benefits, access to health insurance, rental and other housing insurance, education grants and programs, first-time home buyer credits, property transfer rights, consumer credit protections, domestic violence protection, and a wide range of tax benefits and protections.

It also includes immigration and asylum rights, which means no more “love exiles,” LGBT Americans forced to make a heartbreaking “Sophie’s Choice” between remaining in the U.S. and the non-American partner they love.

Who would it include? Everybody! It doesn’t matter where you live. There are no residency requirements for lesbian and gay couples to marry in Massachusetts or Connecticut, enter into civil unions in Vermont, New Hampshire and New Jersey, or domestic partnerships in California, Hawaii, Washington or Oregon. For the price of a round-trip ticket to any of these places, a same-sex couple can solemnize their relationship under state law and receive the same recognition under federal law as a heterosexual married couple.

What about the Defense of Marriage Act? What about it? A federal civil unions law does not run afoul of foul-smelling DOMA, and does not require its full or even half-repeal. DOMA says only that the U.S. government can’t use “marriage” or “spouse” for gay relationships, and one state can’t be forced to recognize another state’s gay marriages. A federal civil unions law does neither.

What would the public say? A federal civil unions law does what the people say they want, since for years surveys say two-thirds favor gay couples having the rights and benefits of marriage, just not the “M-word” itself. Even a majority of delegates to the Republican National Convention this year told pollsters they support civil unions for same-sex couples.

What would Obama say? The president-elect and his running mate don’t support gay marriage, but both have been on record for months supporting fair and equal treatment of gay couples under federal law.

The "Obama-Biden Plan" on Civil Rights, announced on the transition team website (change.gov) includes this promise: "Support Full Civil Unions and Federal Rights for LGBT Couples: Barack Obama supports full civil unions that give same-sex couples legal rights and privileges equal to those of married couples. Obama also believes we need to … enact legislation that would ensure that the 1,100+ federal legal rights and benefits currently provided on the basis of marital status are extended to same-sex couples in civil unions and other legally-recognized unions."

I don't know if Lucrece is serious or joking, but if he is serious, you see that our biggest obstacle will not be amongst our enemies, but amongst ourselves. We will be divided within our own community and defeat ourselves just as we did over ENDA.

For those who say, I would rather have nothing until I get full marriage equality, please wake up. African Americans did not arrive at full equality in one step. They had to go through a separate but equal phase first. We haven't fought and bled even 1/10 as much as they did, and we have the nerve to insist on everything all at once. Please!

I agree with Chris. The proposal would need more work, but we need to protect the millions of us out there who need rights. Chris is not saying we can't fight to add the word marriage later through challenges. What he is saying is compromise for now and continue the fight. In the same vein we get the rights we need to save a lot of people from a lot of issues. Then we sue in federal court for equal rights under the law based on a two path system. Remember, California, Massachusetts, and Connecticut all had civil union laws or proposals on the books until a court action ruled that the dual systems were discriminatory. We don't need to waste time, lets get the rights then continue the fight against the discrimination.

I agree with Chris. The proposal would need more work, but we need to protect the millions of us out there who need rights. Chris is not saying we can't fight to add the word marriage later through challenges. What he is saying is compromise for now and continue the fight. In the same vein we get the rights we need to save a lot of people from a lot of issues. Then we sue in federal court for equal rights under the law based on a two path system. Remember, California, Massachusetts, and Connecticut all had civil union laws or proposals on the books until a court action ruled that the dual systems were discriminatory. We don't need to waste time, lets get the rights then continue the fight against the discrimination.

Last time I checked, African Americans did not settle for Civil Unions when they were granted full rights of marriage, or when their marriages were started to be recognized post-slavery.

We haven't fought or bled as they have because we were killed on spot upon discovery, as opposed to a lifetime of servitude.

If you earnestly believe CU's will get you to marriage, don't fool yourself. Once you institute CU's, marriage will be much harder to achieve, as they'll say "But they have the same benefits, why fuss over the word?", and people will be convinced.

Your approach is not pragmatic; it's desperate and lacking in dignity. I suggest you revisit the roots of this country, for it was founded upon the concept of dignity. If you're OK with letting them affirm heterosexual superiority through establishing separate institutions, then you should reconsider who might just be damaging to this community's plight.

The reason the Mass, CA and Conn courts found dual systems discriminatory was that Civil Unions do not confer the same rights as marriage automatically does. If a national civil union bill passed, as Chris proposes, the dual system argument in void. And, we will have many folks who want the cultural recognition that is attached to "marriage." Be careful in blanket propsals, you may sail into the same treacheous waters the "national leaders" are floundering in now. Movements work best when they are organic and defined by the people fighting for their rights.

Lucrece-- I for one little person in this want to see some progress. And there are huge number of people here in Florida that have a problem with the word 'marriage'. It may not make sense to you but they view it as a religious matter. Mention 'marriage' and the hair on the back of their necks stand up. We need to get religion out of this to the extent possible. And treating this as a civil matter eliminates a good number of the problems. Are there still issues of concern to our enemies? Yes they don't like gays adopting. And some just don't want anything of value to be given to gays. But most people in this country are supportive of civil unions. Pick the fruit or let it rot on the tree. That's the choice.

While on one hand I agree with Lucrece, that it's sickening that we have to even discuss settling for anything other than 100% equality, I do support this idea. There's a huge number of Americans who support the idea that we should have equal rights as long as we don't use the word marriage, so support for such an act might be high, much higher than what we've seen in our attempts to claim "their" word.

Once we have civil unions in place, it will not be long before someone points out that civil unions versus marriage create a version of equality by separating us. I mean, I'm hardly a contitutional scholar, but isn't this a repetition of "separate but equal," exactly the language that the California Supreme Court used to say that domestic partnerships for gay people are an inadequate solution and in doing so, granted us (briefly) full marriage rights. Won't the same thing happen again but on a larger scale? I agree with Chris that this is the best way to advance ourselves. If we demand full marriage right immediately, we are most certain to fail in the immediate, because there are still a large number of people who get nervous at the thought of us "marrying," and it could be decades before such a strategy will work.

There's many ways to fight this fight, and I think this strategy is the most thoughtful. It might look like a compromise in the short term, but isn't a temporary compromise that leads to full rights better than moral high ground that leads nowhere?

I completely agree with Lucrene. I am sick and tired of having to placate the ignorant prejudice masses. I have spent my entire adult life, as have millions of other gay people, calming explaining to straight people what it means to be gay, why it should be respected in full, sometimes with great success but sometimes to childish, irrational temper tantrums disguised as rational arguments from the other side of this non-debate. I am not interested in having debates anymore, I want my rights without compromise, without concession. I got married in June, and the man I married not my partner (I don't work in a law firm), he's not my special friend (he isn't mentally handicapped), he is my husband. People need to confront their prejudice and they won't do it unless we say ENOUGH IS ENOUGH!

OK, a question for those of you who oppose this idea. If Congress tried to pass a civil union bill that would give the 1200 federal benefits to anyone who was in a legal same sex relationship that was recognized by one of the 50 states, would you guys try to shoot it down?

There are a lot of gays out there who would want this bill. Would you try to trample on their wishes and rights? This bill would do nothing to actively take any rights away from you, it would simply fall short of your expectations. You could choose to not participate -- to wait until it is called marriage before you participate.

No one would force you to accept these rights. What would you do? Try to shoot down the legislation? If it passes would you hold out until they called it marriage....or would accept these benefits?

P.S. This does nothing to the state by state marriage battle. That goes on. Also, it does nothing for the effort to repeal DOMA. I seriously doubt that having federal civil unions in place will sway many Congressmen or Senators to not want to vote to repeal DOMA.

In fact having thousands and thousands of couples getting federal benefits (as if they were married) will demonstrate that the sky isn't falling, and will likely help DOMA fall faster. Nothing impresses Congress more than having a little experiment to point to as opposed them being afraid of the unknown.

Having the experiment of segregated blacks in educational settings didn't help them; it had to reach a court.

Congress will keep the status quo. The status quo will in turn be more justified to the populace since the argument that they're denying people benefits will fall flat, and then it's just a battle of social meaning, which takes MUCH longer to overcome.

Lucrece, JB and Rob F: Letting the perfect be the enemy of the good is naive and counterproductive in politics and civil rights. Progress is always -- repeat always -- incremental. Otherwise the only federal civil rights bill you would support would be an umbrella law that adds sexual orientation and gender identity to Title VII, repeals DADT and repeals DOMA.

Any other proposal is by definition incremental and partial progress. A federal civil unions bill extends all -- as in every single one -- of the federal rights and benefits of marriage to same-sex couples, regardless of where they live. Unlike state-level civil unions, which suffer from severe portability limitations, federal civil unions are the legal equivalent. The federal government does not "marry" us; states do.

What's more, passage of a federal civil unions law would have huge symbolic importance, making full marriage equality all but inevitable by reaching out and recognizing gay couples in even the most anti-gay, conservative states. DOMA and state amendments banning gay marriage would be set up like dominoes, just waiting for the courts to strike down.

Having the experiment of segregated blacks in educational settings didn't help them; it had to reach a court.

Congress will keep the status quo. The status quo will in turn be more justified to the populace since the argument that they're denying people benefits will fall flat, and then it's just a battle of social meaning, which takes MUCH longer to overcome.

I still disagree. I don't think it would be long before the issue would be put to court, and I think the courts would have to side with us. Given the cultural significance of the word "marriage," I'm sure a reasonable argument could be made that it is discriminatory to deny us even that word. However, I'll concede optimism on this that may be out of touch with reality.

Here's another hypothetical question. Suppose you could know how long the path to full marriage equality was going to be, by either means (the civil union compromise vs. no compromise on the word "marriage"), and you could know that both paths would take approximately the same amount of time, let's say fifteen years, before all same-sex couples are given exactly the same rights as opposite sex couples in all states. But you also knew that if the path of the civil union compromise was taken, that thousands and thousands of gay people could have equivalent rights in a much shorter time by sacrificing the word marriage. If you knew that both paths would end the same way, but one path would afford rights much sooner, if you could know that, would your principles insist that we continue to reject those rights for those individuals for the sake of your principles? Would you tell a person like Chris, who currently can not bring his partner to live in this country, that the fight demands we wait for the symbolism of that word? Is the word truly that important?

(I truly mean this as a hypothetical question, and not a rhetorical one, and I apologize if my wording of the question reveals my bias, which, of course, I had already stated in the previous paragraph.)

Civil Unions do not confer the same rights as marriage automatically does. If a national civil union bill passed, as Chris proposes, the dual system argument in void. And, we will have many folks who want the cultural recognition that is attached to "marriage."

You pointed out the flaw in this reasoning yourself. Many folks want the cultural recognition that is attached to "marriage," and so it is discriminatory to offer one group of people access to a culturally significant legal status while denying it to others. Is there any legal way to justify the distinction without invoking religious beliefs?

Coming from one of the 19 states where even civil unions are banned, I would accept this as a big first step. With 30 states and counting banning same-sex marriage the alternative right now is to accept nothing and wait until the next generation or later which is unacceptable. If this is the best for now, fine. It may even be better in the long run so the culture war over this will cool down instead of continuously raging like it does regarding abortion. I say that begrudingly, but I am a realist and besides when has America ever moved quickly on civil rights?

Yes. Opponents of same-sex marriage have the votes on the Supreme Court and will not rule in our favor.

I still don't see what legal argument can be used to say "we've given this minority a set of rights that are equal to the set of rights afforded everyone else, but still separate" without forcing themselves into the position of protecting marriage as a religious institution when it clearly is something other than that.

This philosophical discussion is all fine and good, but here is the political reality: there will be no civil unions law before 2010, and therefore there won't be one, period. This was obvious the moment we all woke up the day after the election. You've been sold hope. Look at reality for once. And plan accordingly.

I'm not American so maybe my opinion will not matter to you but Lucrece is right about England. France has had the Pacs forever (1999), which gives a lot less than the civil unions you're aiming for, but still I don't see marriage in the near future. Whereas Spain, where the weight of religion is much more important, went from nothing to marriage for everyone.

I support the goal of full mariage equality as well with its full use of the scary word, marriage. However, if that's the plan we have to be realistic in our expectations over the coming years. If interracial marriage had been put to a vote, and not to court ruling, it would have had to wait until more than 50% of Americans approved of interracial marriage and that was. . . wait for it. . . 1985 (Gallup poll data). King's use of the term "why we can't wait" when writing about the civil rights struggle can, in my mind, by summarized as "we can't wait for white people to change their minds before we get the rights that are ours." By focussing on ballot initiatives, a technique created by the progressives in the 20s btw, the anti-gay right has forced us to make political changes in the slowest way possible, by changing minds. We can fight the campaign they started, a steady ground war over the the prejudices of Americans, or we can win where the civil rights movement won it's first ground, in the courts.

Living in the U.K., I agree there's no visible ongoing marriage fight, but have always thought this might owe to the famous stoicism of the Brits, who don't tend to revere feelings they way we Americans do.

Once they had civil-union equal rights from the government to which they pay their taxes, they didn't much care about the brand-name of those rights, and didn't reel because somebody out there might presume they're of lesser status when the law clearly indicates they're not.